P. M. Hughes & Sons, Inc. v. Royal Indemnity Co. , 10 A.D.2d 717 ( 1960 )

In an action to recover damages for breach of a so-called “ Paymaster, Messenger and Interior Robbery Policy ”, with indorsements thereto attached, and for other relief, the appeal, as limited by appellants’ brief, is from so much of an order as granted respondent’s motion to strike out items 6, 7 and 10 from appellants’ demands for bills of particulars. Order modified by striking from the first ordering paragraph everything following the word “ Items ” and by substituting therefor the words and figures “ 7, 9, 11 and 13; and it is further”. As so modified, order insofar as appealed from affirmed, with $10 costs and disbursements to appellants. The supplemental bills of particulars are to be served within 10 days after the entry of the order hereon. In our opinion, items 6 and 10 were not properly struck out merely because respondent’s counsel appraised them as inapplicable to the respondent’s theory of its action by statements contained in his moving affidavit on the motion to vacate, which statements formed no part of the complaint herein. Appellants were entitled to formal amplification of the complaint, as it was pleaded, so as to know definitely the facts which they were called upon to meet at the trial, independently of respondent’s interpretation thereof or of the imputation of knowledge thereof to appellants as a consequence of counsel’s statements in his affidavit (Solomon v. Travelers Fire Ins. Co., 5 A D 2d 1017). Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.